NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0542n.06 No. 10-5703 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

WI L L I AM D. F OWL ER, L I NDA A. F OWL ER, Plaintiffs-Appellee s,

v. STEVEN B URNS, et al., Def endants, and BU DDY RANDOL PH, J ames “B uddy ” Randolph; MI KE F I NCHER; J OHN HU FF I

NE, Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TENNESSEE

Be fore : SI L ER, COL E, KETHL EDGE, Circuit Judges. KETHL EDGE, Circuit J udg e. Gre ene County , Tenne ssee Detect ives J ohn Huffine , Mike Finche r, and J ames Randolph arr ested Wil liam and L inda Fowle r for conce aling a stolen lawn

mower. After questioning the Fowle rs, the detec tives thought the evid en ce was insufficient for a conviction, so t h ey released the Fowle rs without filing char g es. The Fowle rs there afte r sued the detec tives, primarily alleg ing that they lacke d probable cause for the arr est. The detec tives moved for summa ry j u d gment on numerous g rounds, including qualified immunit y . The district court g rante d the m otion in part. The detec tives now appe al, re asser ting their immunit y defe nse for the Fowle rs’ re maining c laims.No. 10-5703

Fowler v. Burns I

. We take the district court’s view of the fac ts i n the light most favor able to the Fowle rs. Hayde n v. Gre en , 6 4 0 F. 3 d 1 5 0, 152 (6th Cir. 2011). The lone question on appea l is whether the detec tives ar e shielded by qualified immunit y , so we limit our discussion to the information they possessed at the time. See A nderson v. Creighton , 483 U.S. 635, 641 (1987). A. On J anuar

y 7, 2007, a Gre ene County , Tenne ssee business repor ted the theft of five “Torored,” zero-turn, riding lawn mowers. The same day , De t ec t i v e Finche r interviewe d Be tty Huff, a local resident. She repor ted seeing a pickup truck pulling sever al riding mow er s towards Old Chuckey Hig hway , which is in the “g ener al direc tion” of the F owlers’ home on Sand B ar Road. Almost a mont h later, on Friday , Fe bruar y 2, 2007, Finche r interview ed Charle s Mosier at the Unicoi County jail. Mosier and Charles W illiams had b ee n arr ested for driving a st olen t ruck

an d we re s u s p ects in the mower heist. Mosier told Finche r that he and Wil liams had done som e work on the Fowle rs’ home, and that Wil liams had sold one of the stolen mowers to the Fowle rs for $4,500 on the day of the theft. Mosier had provided additional information that led to the rec overy of other mowe rs, so Finc her c redited the tip. Finche r called Huffine and rela y ed Mosier’s story

. Huffine and another office r went to the Fowle rs’ home. When no one answe red t h e d o o r, t he office rs looked for the Fowle rs in the outbuildings on the prope rty . I n an open shed, Huffine saw “a t arp over a larg e object that was in the s h ap e of a z ero- turn riding lawnmower .” (Huff ine Aff. ¶ 3.) Huffine could s ee the bottom of

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Fowler v. Burns t h e m o we r, wh i ch looked new and was “Toro red” in color. He lifted the t arp, chec ked the serial number, a nd confirme d that it was one of the stolen mowers. Offic ers waited for the Fowle rs to return home, fea ring the mow er m i gh t “disappe ar.” Huffine then questioned the Fowle rs. Mr. Fowle r repor ted that he had discovere d the mower ear lier that day and “had called the Unicoi County Sheriff [Harris] that morning and repor ted the discovery of the lawnmower .” (Huff ine Aff. ¶ 4.) The Fowle rs denied purcha sing the mower from Wil liams or having any

knowledg e of it bef

ore that morning

. On M onday , Fe bruar y 5, 2007, the detec tives lear ned that S heriff Har

ris had been out of town on F ebrua ry 2, when Mr. F owler c laimed to have repor ted the new ly

discovere d mower. Finche r also spoke to Detec tive Her man Hag ey of the Washington County Sheriff’ s Offic e. Fi n ch er lear

ned from Hag ey that the Fowle rs had purcha sed a new far m trac tor and trail er fr o m Wil liams, for “$12,000 in cash that they had around the house.” The tra ctor wa s later de termined to be stolen. The tra ctor thef t appar ently

was sepa rate from the mowe r theft. B. Ba sed on these fac ts, the detec tives collectively deter mined they had probable cause to arr est the Fowle rs for committing “thef t of p ro p er t y ” in violation of Tenne ssee Code Annotated § 39-14-103. The detec tives sent deputies to bring the Fowle rs in for questioning. Mr. Fowle r was leaving for a doctor’s appointment when they arr ived. The deputies told him to repor t to the station when he was finished. The deputies then enter ed the Fowle rs’ home, without a war rant or consent, and took Ms. Fowle r into custody

.

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Fowler v. Burns Finche r there afte r questioned the Fowle rs, who continued to deny knowledg e that the mower was stol en or even that it had been s tored on their property

. Finche r believed he co u l d n ot obtain a conviction without Wil liams’s testimony

. Wil liams ref used to g ive a statement, however, since he was fac ing criminal char g es for the theft. Finche r rele ased the Fowle rs the sam e d ay . The Fowle rs have never

been c harg ed with any

crime a rising out of

these e vents. The Fowle rs broug ht suit ag ainst the detec tives, asser ting cl aims for unlawful sear ch, unlawful entry , unlawful arr est, excessive forc e, and violation of equal- protec tion under 42 U.S.C. §§ 1983 and 1988, as well as sever al state-law claims. The detec tives moved for summary judgme nt

on all claims. The district court g rante d the motion in part, but denied the detec ti v es’ reque st for qualified immunit y on the Fowle rs’ fede ral and state-law claims for unlawful-a rre st and unlawfulentry . The de tectives a

ppeal that de nial. I I

. To the extent t h i s i n t erloc utory appea l turns on an issue of law, we have jurisdiction to consider it. See Hayde n , 640 F.3d at 152. The Fowle rs bear the burden of defe ating the detec tives’ qualified-immunity

defe nse. Id . at 153. We revie w the district cour t’s decision de novo. Id

. A. The Fowle rs first claim that the detec tives arr ested the Fowle rs without probable cause . We gen er al l y beg in a qualified-immunity inquiry by deter mining whether the office rs violated a constitutional rig ht. See id

. The district court denied summary judgme nt on this question, rea soning that a jury

could find that the de tectives lac ked proba ble ca use for arr esting the Fow lers.

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Fowler v. Burns But the detec tives arg ue they are entitled to qualified immunit y nonetheless. “I t is inevitable” that police officer s “will in some case s rea sonably but mistakenly conclude that probable cause is prese nt[ .]” Creighton , 483 U.S. at 641. The law acc ounts for these mistakes by providing office rs with immunit y from suit unless their “conduc t violate[s] a clea rly established constitutional rig ht.” Pearson v. Callahan , 129 S. Ct. 808, 816 (2009). I n the context of a probable -ca use deter mination, that means an office r is immune from suit unless it was appar ent that “the circ umstances with which [t he arr es t ing office r] was confr onted did not constitute probable cause .” Creighton , 483 U.S. at 640-41 (empha sis added)

. We t h er ef o re must consider “whe ther a rea sonable office r could have believed” the arr est was lawful, “in light of clea rly established law and the i n fo rm ation the [arresting ] officers posse ssed.” Id . at 641. An office r has probable cause if there is a “fa ir probability ” that the suspect has committed

a crime. Feathers v. Aey , 319 F.3d 843, 851 (6th Cir. 2 0 0 3 ) (interna l quotation marks omitted). Here, the detec tives thought the Fowle rs had committed “thef t of proper

ty ,” by their rec eipt o r

conce alm en t o f t h e stolen mower. So we must deter mine whether a rea sonable office r, knowing what these detec tives knew, could have believed that the Fowle rs “knowing ly ” rec eived or exercised control over a stolen mower “with intent to deprive the owner of [t he] proper ty .” Tenn. Code Ann. § 39-14-103. An officer normally is entitled to rely on ey ewitness accounts for purposes of deter mining probable cause . See Crockett v. Cumberland College , 3 1 6 F. 3d 571, 584 (6th Cir. 2003). Her e, Mosier reported that the Fowlers bought t he mower on the day of t he t h ef t

. M o s i er was credible, since he led the office rs to othe r stolen mowers, and since the Fowle rs in f act possessed one of the -5-No. 10-5703

Fowler v. Burns stolen mowers. Huff’ s statement that she saw the mowers being hauled towards the Fowle rs’ place

on the day of the theft adds some corr oboration. I n addition, office rs could have rea sonably believed the mower had been stored in an unlocked shed, partially cover ed by a tarp, for near ly a month. We think a rea sonable office r fac ed with these fac ts could conclude that the Fowle rs knowing ly rec eived

or conc eale d the mower

. We also think an office r rea sonably could have believed the Fowle rs intended to deprive the

owner of the mower. An office r could have b el i ev ed that the mower had been on the Fowle rs’ proper ty for wee ks. Yet the Fowle rs claimed, coincidenta lly , to have discovere d it the very morning the o ff i ce rs ca me looking for it. The Fowle rs also told the detec tives they had repor ted their discovery to Sher iff Har

ris. Yet Har

ris was out of town at the time of the alleg ed call. Fr om these fac ts, the detec tives rea sonably could have believed the Fowle rs wer e try ing to hide the mower and

wer e ly ing a

bout their rec ent discover y of it. The Fowle rs conce de that t h e evidenc e “did perha ps raise suspicion sufficie nt enoug h to

war rant further investiga tion.” (F owler Br

. at 20.) They say the detec tives could have “questioned the Fowle rs” and “double- chec k[ed] any answe rs” they g ave. ( Id .) But an office r is not require d to believe a criminal suspec t’s story

. See Ahlers v. Schebil , 188 F.3d 365, 371 (6th Cir. 1999). And

once an office r establishes probable cause , he has no obliga tion to investiga te further befor e making

an ar rest. Crockett , 316 F.3d a t 581. The Fowle rs next arg ue that neit h er M osier’s story (that the Fowle rs boug ht the stolen

mower ) n o r the Fowle rs’ story (that they had just discovere d it) was nece ssarily inculpatory

. We have explained that the detec tives wer e entitled to cre dit Mosier’s version. That story left room for -6-No. 10-5703

Fowler v. Burns the Fowlers to ad m i t purcha sing the mower, while disclaiming knowledg e that it was stol en. But the Fow lers denie d all knowledg e of the m ower , which it self could have see med suspicious g iven the extended time the mower w as on their pr operty . And it is not apparent why Mosier would say that the Fowle rs had boug ht the mower, if the thieves had stashed it (in plain sight) on the Fowle rs’ proper ty

. We think a rea sonable de tective c ould find the discrepa ncy in the t wo s tories s upported a proba ble-c ause de termination. The Fowle rs arg ue, howeve r, that “any possible suspicion of bad motive” is neg ated here by other evidenc e in the case . (F owler Br

. at 22.) S p ec i fi ca l l y , t he Fowle rs arg ue that “it must be assumed” tha t the detec tives knew that the Fowlers had voluntar ily returne d the trac tor when the y lear ned it might have been stolen. The district court ag ree d, explaining: “Since Finche r knew about the stolen trac tor, he should have known” how the trac tor came to be returne d to its rig htful owner . The detec tives respond that a rea sonable office r could have believed the Fowle rs turned in the trac tor beca use it wa s too dif

ficult to hide , while re taining the smaller mower, conce aled in the shed. We ag ree with the detec tives on that point. I n addition, the detec tives knew that the F owlers ha d paid for the trac tor with $12,000 cash. That fac t too supported a theory that the Fowle rs knew that Mosier and Wil liams wer e fenc ing stolen g oods, which in turn supported the theory that the Fowle rs knew the mower

was a lso stolen. Finally , the Fowle rs arg ue that a fac t question rema ins as to whether Mr. Fowle r told Huffine that he had c alled for

Sheriff H arr is, as Mr. Fow ler c ontends, or i f Mr. Fowle r said he had spoken to Harr is, as Huffine understood. We evalua te probable cause based on what the of fice rs knew at the time of the Fo wl er s ’ ar re s t

. See Creighton , 483 U.S. at 641

. And it is undisputed that the -7-No. 10-5703

Fowler v. Burns detec tives thought Fowler claimed to have spoke n to Sheriff Ha rris on F riday , Fe bruar

y 2, 2007. (The Fowle rs’ response that the detec tives m i s u n d erstood them is not rele vant for our purposes.) When the detec tives lear

ned Har ris had been out of town that day , they wer e entitled to add Fowle r’s appar ent lie to the proba

ble-c ause side of

the sca le. Given the extended time the officer s rea sonably believed the mower had been on the Fowle rs’ proper

ty ; Mosier’s cre dible tip; the Fowle rs’ d en i al t h at they had purcha sed the mower coupled with their claimed coincidenta l discovery of it; the Fowle rs’ l ar ge ca s h purcha se of the stolen trac tor; and t h e detec tives’ belief that the Fowlers had lied about calling S heriff Har ris, the Fowle rs have not met their burden of showing , as a matter of law, that any rea sonable office r would have known the evidenc e did not amount to probable cause . See Creighton , 483 U.S. at 640-41. The detec tives are entitled to qualified immunity for the a rre st. 3. The Fowlers a l s o broug ht state-law false- arr est and false-imprisonment claims ag ainst the detec tives. Tenne ssee’ s discretionar y funct i o n immunit y para llels the federa l qualified-immunity analy sis. See Rogers v. Gooding , 84 F. App’x 473, 477 (6th Cir. 2003)

. The Fowle rs rely on their fede ral arg uments to overc ome the detec ti v es’ state-law immunit y . For the rea sons we have explained, we rej ec t t h o s e ar g uments. The detectives are entitl ed to state-law immunit y for these claims. B. Ms. Fowle r also claims that the deputies who arr ested her enter ed her home without a war rant

or consent, in violation of the Four th Amendment. See Kirk v. Louisi ana , 536 U.S. 635, 638 (2002).

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Fowler v. Burns These de tectives, howe ver, w ere not present f or the a rre st. Ms. Fowle r nevertheless se eks to hold them liable beca

use one of them—it is not clea r who—instructed the arr esting deputies to “bring the Fowle rs in” for

questioning. Section 1983 liability does not attach to a supervisor unless he “at least implicitl y authorized, approve d or knowing ly

acquie sced in the unc onstitut ional conduct of the offe nding subor dinate.” Petty v. County of Franklin , 478 F.3d 341, 349 (6th Cir. 2007) (interna l quotation marks omitted). Ms. Fowle r arg ues that a jury could find that the detec tives implicitl y au t h o ri z ed the deputies’

war rantless entry by direc ting them to “ bring the Fowle rs in” for questioning without “ follow[ing] this instruction with any cave at that the deputies wer e not to enter the house itself.” (F owler Br

. at 31.) Ms. Fowle r has not cited any authority supporting such a broad theory of supervisory liability

. We will not ado p t a ru l e t h at would require ever y supervisor, issuing ever y routine direc tive, to remind his subordinates to car ry out their duties within the bounds of the Constit ution. Cf. Harlow

v. F itzgerald, 457 U.S. 800, 818-19 (1982) (“a rea sonably competent public officia l should kn o w the law g overning his c onduct”)

. There simply is no evidenc e that any detec tive, let alone three of them, authorized the arr esting deputies to enter Ms. Fowle r’ s h o m e without her consent. The detec tives are entitled to qualified immunity on this claim as well. * * * The district court’s denial of qualified immunit y is reve rsed and the case re manded for proce eding s consistent with this opi nion.

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